Citation NR: 9708656
Decision Date: 03/14/97 Archive Date: 03/25/97
DOCKET NO. 93-15 821 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for residuals of exposure
to ionizing radiation, to include a low sperm count,
hypertensive cardiovascular disease, a lung disorder, a skin
disorder classified as jungle rot and a psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. K. ErkenBrack, Counsel
INTRODUCTION
The veteran served on active duty from January 1946 to
November 1947 and from July 1950 to January 1952.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in substance, that he has residuals of
in-service exposure to ionizing radiation to include a low
sperm count, hypertensive cardiovascular disease, a lung
disorder, a skin disorder classified as jungle rot and a
psychiatric disorder.
DECISION OF THE BOARD
The Board of Veterans Appeals (Board), in accordance with the
provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996),
has reviewed and considered all of the evidence and material
of record in the veteran's claims file. Based on its review
of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board
that the claims for service connection for residuals of
exposure to ionizing radiation to include a low sperm count,
hypertensive cardiovascular disease, a lung disorder, a skin
disorder classified as jungle rot and a psychiatric disorder
are not well grounded.
FINDING OF FACT
The claims for service connection for residuals of exposure
to ionizing radiation to include a low sperm count,
hypertensive cardiovascular disease, a lung disorder, a skin
disorder classified as jungle rot and a psychiatric disorder
are not supported by cognizable evidence showing that the
claims are plausible or capable of substantiation.
CONCLUSION OF LAW
The claims for service connection for residuals of exposure
to ionizing radiation to include a low sperm count,
hypertensive cardiovascular disease, a lung disorder, a skin
disorder classified as jungle rot and a psychiatric disorder
are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 &
Supp. 1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The service medical records show, in May 1947, that the
veteran fell asleep on the beach and suffered sunburn of the
back of his neck, back and back of his shoulders, thighs and
calves. In June 1947, he was hospitalized with feelings of
being pent-up inside, feeling funny inside, wanting to break
something, and wanting to hit somebody. He reported seeing
spots before his eyes and hearing his mother’s voice, which
had first occurred before he entered active duty. He was
hospitalized from confinement after he had been absent
without leave (AWOL). The initial impression was
schizophrenia.
The veteran was transferred to another hospital with an
admitting diagnosis of schizophrenia. It was reported in
July 1947 that he showed no signs of any major psychiatric
disorder. He was not psychotic or psychoneurotic. No true
hallucinations were indicated. Hearing his mother’s voice
during half-consciousness between wakefulness and sleep was
hypnagogic in character. The spots before his eyes were not
hallucinations and reflected an unstable emotional structure.
He was immature and his judgment was not particularly good.
He was labile emotionally. No psychiatric abnormality was
diagnosed and the prior diagnosis of schizophrenia was
considered erroneous. The separation examination showed no
pertinent complaint, finding or diagnosis. The urologic,
cardiovascular, lung, skin and psychiatric findings were
within normal limits.
During active service from July 1950 to January 1952, it was
recorded that he had been involved in the atomic tests at
Bikini Atoll, Operation CROSSROADS. There was no complaint,
finding or diagnosis of any urologic, cardiovascular, lung,
skin or psychiatric abnormality.
Non-Department of Veterans Affairs (VA) hospitalization in
April 1962 was for fever, headache and mild, non-productive
cough. He was said to have asthma and bronchitis. The
physical examination revealed no lung abnormalities. Chest
X-rays revealed an infiltrate in the posterior and apical
segments of the right upper lobe. The final diagnosis was
pneumonia of the right upper lobe of uncertain etiology,
possibly pneumococcal.
The veteran was treated at a non VA hospital in October 1962
for a gastrointestinal disorder. History of treatment for
pneumonia of undetermined organism in May 1962 was recorded.
He reportedly had recovered. There was no complaint, finding
or diagnosis of any urologic, cardiovascular, lung, skin or
psychiatric abnormality.
A non-VA physician reported in February 1966 that the veteran
had been seen initially in November 1965 for non-specific
chest pain. Intermittent chest pain that was worse on
exertion, dyspnea and diaphoresis were shown. It was
reported that he had chronic asthma. He was on medication
for asthma. He reported having heart problems. Blood
pressure was 140/110. The lungs were clear to auscultation
with very minor occasional expiratory wheeze. An
electrocardiogram was reported to be within normal limits.
At the time of the electrocardiogram, he complained of light-
headedness. The impressions included chronic asthmatic
bronchitis.
A non-VA hospital report in October 1971 showed that the
veteran had been treated three years previously for a
myocardial infarction. He also had a psychiatric history of
nervousness over the previous two years during times of chest
pain. Blood pressure was 130/94. Fluoroscopy revealed a
small dyskinetic area of the left ventricle. The final
diagnoses included organic heart disease (OHD),
arteriosclerotic heart disease (ASHD), anginal syndrome,
status post myocardial infarction (MI) and anxiety neurosis
(AN).
Non-VA hospitalization in November 1971 was for coronary
angiography. The heart was enlarged to palpation.
Angiographic results showing coronary artery obstructions led
to the opinion that the veteran should have bypass surgery.
He then developed sudden left pleuritic chest pain. A lung
scan showed a profusion defect. Follow-up X-ray studies
confirmed a small pulmonary embolus and infarction of the
lower left lung. A psychiatric consultant found a
personality disorder and ordered further psychological
testing. The final diagnosis was ASHD with angina pectoris
and a recent acute pulmonary embolus.
Non-VA hospitalization in December 1971 was for
gastrointestinal symptoms but a 10 year history of angina
with probable MI and recently shown severe coronary artery
disease (CAD) was recorded. The appellant also had had high
blood pressure on several occasions. Blood pressure was
150/110. Electrocardiogram showed possible old inferior and
changes consistent with ischemia. Chest X-ray showed no
active intrathoracic disease. The final diagnoses included
OHD, arteriosclerotic cardiovascular disease, status post MI
with angina pectoris and hypertension, probably essential
labile.
On a VA examination in February 1976, no skin abnormality was
detected. The lungs were clear without wheezes or rhonchi.
The veteran reportedly had had two attacks of asthma since
1968. Chest X-ray showed a slight increase in the markings
in the lung bases which could have been consistent with
bronchiectasis or bronchitis. No acute infiltrates were
visualized. The psychiatric evaluation showed that he was
tense and anxious. There was evidence of depression. His
general mood was depressed. A psychophysiologic
gastrointestinal reaction was the clinical impression. The
other diagnoses included ASHD, ongoing angina, mild labile
hypertension, asthmatic bronchitis with no symptoms on this
examination, and possible chronic bronchitis by X-ray. No
skin or urologic abnormality was reported.
The veteran was hospitalized by VA in March 1978 because of a
history of radiation exposure. He reportedly had been at the
atomic testing site in the Marshall Islands and had been 14
miles from ground zero. He reportedly had participated in
three different atomic explosions over a period of three
years. No abnormality was associated with this exposure.
OHD was also reported. A history of exposure to radioactive
material and OHD were diagnosed.
In June 1982, a non-VA physician reported that the veteran
had suffered an acute inferior wall MI in May 1982 and had a
long history of CAD. He continued to have angina pectoris.
A June 1996 report from the Defense Nuclear Agency indicates
that the veteran was at Operation CROSSROADS, a United States
atmospheric nuclear test series during 1946. He was assigned
to the USS FULTON (AS 11). A careful search of dosimetry
data revealed no record of radiation exposure for him. A
scientific dose reconstruction indicated that he would have
received a probable dose of 0.736 rem gamma (upper bound of
1.806 rem gamma). A scientific dose reconstruction titled
Neutron Exposure for DOD Nuclear Test Personnel (DNA-TR-84-
405) indicated that, due to the distance his unit was from
ground zero, he had virtually no potential for exposure to
neutron radiation. A reconstruction report titled Low Level
Internal Dose Screen - OCEANIC Tests (DNA-TR-88-260)
indicated that his internal exposure potential was less than
0.150 rem (fifty-year) committed dose to the lung was also
less than 0.150 rem.
A unit history at Operation CROSSROADS was received with the
above-specified report. A careful search of CROSSROADS
dosimetry data revealed that out of a total of 685 crew
members and an undetermined number of other persons embarked
on FULTON, only 25 individuals were issued film badges.
During CROSSROADS, badges were issued to a percentage of the
crew originally assigned to some of the ships. Also, film
badges were generally issued to those personnel who re-
boarded target ships or worked in other contaminated areas.
Six individuals’ film badges were either not returned or were
rendered unreadable due to adverse environmental conditions.
The recorded mean exposure for the remaining 19 badged FULTON
personnel was 0.014 rem gamma, with a range of exposure from
0.04 to 0.24 rem gamma.
Overall the radiation exposures for CROSSROADS were
relatively low. Approximately 99 percent of all recorded
radiation exposures at CROSSROADS ranged from zero to 0.5 rem
gamma. The highest recorded cumulative radiation exposure
for any individual at CROSSROADS was 3.72 rem gamma. This
exposure was within national occupational radiation exposure
standards which permitted 5.0 rem per year.
Analysis
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well grounded. See 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well
grounded claim is a plausible claim, meaning a claim that
appears to be meritorious. See Murphy, 1 Vet.App. at 81. An
allegation of a disorder that is service connected is not
sufficient; the veteran must submit evidence in support of
the claim that would "justify a belief by a fair and
impartial individual that the claim is plausible." See
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609,
611 (1992). The quality and quantity of the evidence
required to meet this statutory burden of necessity will
depend upon the issue presented by the claim. Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993).
In order for a claim to be well grounded, there must be
competent (medical) evidence that the veteran currently has
the claimed disability. See Rabideau v. Derwinski,
2 Vet.App. 141, 143 (1992). There must also be either lay or
medical evidence of incurrence or aggravation of a disease or
injury in service. The veteran must also submit medical
evidence of a nexus between the in-service disease or injury
and the current disability. See Caluza v. Brown, 7 Vet.App.
498 (1995).
Where the issue is factual in nature, e.g., whether an
incident or injury occurred in service, competent lay
testimony, including the veteran’s solitary testimony, may
constitute sufficient evidence to establish a well grounded
claim; however, if the determinative issue is one of medical
etiology or a medical diagnosis, competent medical evidence
must be submitted to make the claim well-grounded. See
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
A lay person is not competent to make a medical diagnosis or
to relate a medical disorder to a specific cause. See
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). If the
veteran fails to submit evidence in support of a plausible
claim, VA is under no duty to assist the veteran in the
development of the claim. See Grottveit at 93.
A low sperm count, hypertensive cardiovascular disease, a
lung disorder, a skin disorder classified as jungle rot and a
psychiatric disorder, respectively, may be service connected
as residuals of exposure to ionizing radiation if they are
recognized as radiogenic diseases or if they are shown by
scientific or medical data cited or submitted by the veteran
to be radiogenic. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. § 3.311 (1996).
The Board finds that the veteran has not submitted well
grounded claims for service connection for residuals of
exposure to ionizing radiation, to include a low sperm count,
hypertensive cardiovascular disease, a lung disorder, a skin
disorder classified as jungle rot and a psychiatric disorder,
respectively. His assertions that he has these disorders as
a result of exposure to ionizing radiation during active
service is implausible, since, as a lay person, he is not
competent to make such medical determinations. See Espiritu.
Such assertions are unsupported by any of the relevant
medical evidence on file. Adverse skin and psychiatric
symptomatology during active service were acute and
transitory, resolving completely without residual disability.
The skin manifestations resulted from sunburn. The
psychiatric symptoms cleared on the basis of the complete
service medical records dated through July 1947. The post
service medical records showed no pertinent abnormality
traceable to active service, to include in-service exposure
to ionizing radiation.
In other words, the medical evidence, including the service
medical records, does not show that the veteran has a low
sperm count, or any current skin abnormality. No
cardiovascular, lung or current psychiatric abnormality was
shown until many years following active service, and none is
shown to be traceable to in-service exposure to ionizing
radiation. The veteran has cited/submitted no scientific or
medical evidence that links any of the claimed disorders to
exposure to ionizing radiation. None of the claimed
disorders is recognized as radiogenic.
When the Board addresses in its decision questions that have
not been addressed by the RO, such as whether or not the
veteran’s claims are well grounded, it must consider whether
the veteran has been given adequate notice to respond and, if
not, whether the veteran has been prejudiced thereby.
Bernard v. Brown, 4 Vet.App. 384 (1993).
In light of the veteran's failure to meet the initial burden
of the adjudication process regarding his claims seeking
service connection for residuals of exposure to ionizing
radiation, to include a low sperm count, hypertensive
cardiovascular disease, a lung disorder, a skin disorder
classified as jungle rot and a psychiatric disorder,
respectively, the Board concludes that he has not been
prejudiced by the decisions on such issues herein.
Likewise, the Board finds that the RO has complied with
38 U.S.C.A. § 5103(a) and that the claimant had been advised
of the evidence necessary to complete his claims. Robinette
v. Brown, 8 Vet.App. 69, 77-78 (1995).
ORDER
The claims not being well grounded, service connection for
residuals of exposure to ionizing radiation, to include a low
sperm count, hypertensive cardiovascular disease, a lung
disorder, a skin disorder classified as jungle rot and a
psychiatric disorder, respectively, is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals.
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